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Private emails on work accounts can lead to dismissal

2 February 2016

Readers using computers at work will all be interested in a recent decision from a far corner of the Earth. Bogdan Barbulescu from Romania took a case to the European Court of Human Rights due to his employer accessing his Yahoo Messenger account.

Barbulescu's employer asked him to create a Yahoo Messenger account for the purpose of responding to client enquiries. He was later told that his communications had been monitored and that they had seen he had used the internet for personal purposes contrary to instructions.

He had been sending messages to his fiance and brother. His employer decided to dismiss him.

The issues he raised in Court are important to New Zealanders.

Barbulescu argued that his employer's decision to dismiss him was based on a breach of his right to privacy. The emails were of a private character and were protected he said.

He argued that because the Yahoo Messenger service was used, and that his employer had instructed him to choose his own password, that he expected the communications to be treated as private.

The judges sitting in Strasbourg handed down their decision in January and Barbulescu lost his case. In dismissing his appeal the Court found that the employer's monitoring was limited in scope and proportionate given that the employer only examined emails on his Messenger account, and not other data or documents which were stored on the computer.

The employer accessed the Messenger account on the assumption that the information in question related to professional activities and that access had therefore been legitimate.

The Court said that it was not unreasonable for the employer to verify that their employee was completing their professional tasks during work hours.

Do readers think that an employer in New Zealand should be able to access private emails sent from a work email address, or more importantly, that an employee can be dismissed with justification in the same circumstances?

A similar case has been heard in New Zealand between Vodafone and their former employee Papataia Toleafoa. Toleafoa was investigated for an alleged breach of the company's policy prohibiting emails for non-business purposes.

It was discovered that she had sent emails to a friend referring to her managers as "ufa" and "kefe". These words translate as terms of abuse similar to "d...head" or "f...wit". Following this discovery, and other alleged misconduct, Vodafone dismissed Toleafoa.

Toleafoa raised a personal grievance against Vodafone and the case was heard by the Employment Relations Authority.

The Authority held that Vodafone was justified in dismissing Toleafoa and that the language used in the email was misconduct.

The Authority rejected her defence that the emails were private - the employer's policy stated that all messages generated on its systems were company property and that it had the right to monitor all employee emails passing through its system. Inappropriate use was forbidden and this expressly included coarse language.

The Authority determined that whatever the employee might choose to say about her managers in genuinely private situations was one thing, but she took the risk of disciplinary action when she made derogatory comments about them during work hours and while using the employer's technology and resources.

It is a long standing principle that employers can regulate the use of their own property. This includes computer technology. They can also regulate what their employees do because they are paying for them to do employer related work.

Accordingly an employer can prohibit the personal use of their technology during work time. Obviously they can also allow reasonable use of the technology for personal matters, such as what would normally happen with the use of the telephone or personal emails. The employer can also access what is on their work computer.

Regardless it is important because of good faith to have policies on these matters which all employees are aware of and to consistently apply these policies. So in all probability Barbulescu or any Kiwis who follow his example would be at risk of sanctions in New Zealand.

Cullen - The Employment Law Firm was one of the first eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

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